Citation Nr: 1334082 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 01-04 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: John F. Cameron, Attorney-at-Law WITNESSES AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from July 1952 to August 1957 and served on active duty for training in June 1968. This appeal arises from a May 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board issued a decision in January 2006 denying the claim for service connection for the cause of the Veteran's death. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In July 2008 the Court vacated that decision and in May 2011, the Board again denied the claim. The appellant appealed that decision to the Court, which vacated the Board's decision pursuant to the terms of a Joint Motion for Remand. In April 2013, the Board requested a medical opinion which was received in May 2013. In September 2013, the appellant submitted additional evidence that was not reviewed by the RO. However, she waived RO consideration of the additional evidence, permitting the Board to consider such records in the first instance. See 38 C.F.R. § 20.1304(c) (2012). Hence, the additional evidence is being considered. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died on December [redacted], 1999. 2. At the time of the Veteran's death service connection was in effect for residuals of a left shoulder injury and post gastrectomy syndrome. 3. The cause of death was cardio-respiratory arrest. 4. A private medical opinion links the effects of the medication used to treat the Veteran's connected disability with the Veteran's death. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is granted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Criteria & Analysis Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue involving the appellant's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). This is so because the Board is taking action favorable to the appellant by granting the issue at hand. As such, this decision poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service connection for the cause of the Veteran's death may be granted if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312; see Harvey v. Brown, 6 Vet. App. 390, 393 (1994). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other conditions, was the immediate or underlying cause of death or was etiologically related thereto. Contributory cause of death is inherently one not related to the principal cause. In determining whether the service connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but it must be shown that there was a causal connection. 38 C.F.R. § 3.312; see Ashley v. Brown, 6 Vet. App. 52, 57 (1993). The Veteran's death certificate reveals he died on December [redacted], 1999. The cause of death was listed as cardiorespiratory arrest. No antecedent cause was listed on the death certificate. The Veteran was not an inpatient in a hospital at the time of his death. No autopsy was performed. At the time of his death service connection was in effect for postgastrectomy syndrome, evaluated as 20 percent disabling, and residuals of a left shoulder injury, evaluated as 30 percent disabling. The Veteran's non-service connected disabilities included coronary artery disease and myocardial infarction, with a history of coronary artery bypass graft in 1976. He also had a lumbar laminectomy and spinal fusion in 1972. He smoked one to two packs of cigarettes per day. His medical history also included a right cerebral infarct, with carotid artery disease and right carotid endarectomy. In 1995 atherosclerotic peripheral vascular disease with claudication and ischemia of the left lower extremity was diagnosed. On the day of his death, the Veteran was found by his daughter in his bathroom. His daughter started CPR and the rescue squad attempted to resuscitate the Veteran. In the emergency room, after efforts to revive him failed, he was pronounced dead. No diagnostic testing or examination of the Veteran was conducted. Cardiorespiratory arrest was the diagnosis. No one witnessed the Veteran's arrest. Service treatment records do not include any symptoms of either a respiratory or heart disorder in service. There is no diagnosis of arteriosclerosis, cardiovascular disease or any other cardiac or respiratory disorders dated within one year of the Veteran's separation from active service in August 1957. The evidence does not support finding service connection should be granted for any respiratory or cardiovascular disorder, on a direct basis. 38 C.F.R. §§ 3.307, 3.309 (2013). The appellant asserts that the cause of the Veteran's death is linked to his treatment for the pain caused by his service-connected shoulder disorder. She contends the pain medications taken by the Veteran contributed to his death. In January 1998 the Veteran testified before a Hearing Officer at the RO. He reported having constant pain due to his arthritis. He took Lortab during the day and Percocet at night to help him sleep. Once a month he was given Lidocaine and Medrol in his shoulder. (T-5, 6). The appellant submitted a list of the prescription drugs dispensed to the Veteran between January 1990 and November 16, 1999. During the six weeks preceding his death the Veteran had purchased Percocet, Lorcet, Ambien and Lortab. Between February 1999 and May 1999 Celebrex had been dispensed to the Veteran. In support of her assertion, the appellant submitted a March 2001 statement from the Veteran's private physician, Dr. Zumstein. He wrote that the Veteran had been his patient for over twenty years, and had suffered from severe left shoulder pain. "Despite medications and treatment, (the Veteran) lived with constant pain. This pain contributed to his daily stress and significantly contributed to his cardiac arrest and death." The Veteran's daughter, a registered nurse, submitted a list of the medications used by the Veteran and their side effects. The Veteran was taking Ambien, Celebrex, Percocet and Lortab and Lortab Plus. The side effects included both respiratory and cardiac complications. She stated they could have contributed to his death. The Board requested a medical opinion from a VA physician and received a response in April 2003. After reviewing the claims folder, the VA provider wrote that per an August 1995 admission to Southeast Alabama Medical Center, the Veteran had coronary artery disease and coronary artery bypass graft in 1976, carotid artery disease with an endarectomy in 1988 with a stroke. He was a 50 pack year smoker, and had significant peripheral vascular disease of the legs. In his opinion it was unlikely that the pain medication caused or significantly contributed to his death. The advanced cardiovascular disease and smoking most likely caused the cardiopulmonary arrest resulting in death. A second VA opinion was requested in April 2004. The VA physician, Chief of the Medical Care Service Line at Salem VA Medical Center, and Professor of Clinical Medicine at the University of Virginia, School of Medicine, reviewed the records and wrote the following opinion: I believe it is unlikely that the pain relief medication prescribed for the Veteran's shoulder disability or the pain itself contributed to substantially/materially cause the Veteran's cardiorespiratory arrest. I based this opinion on (the) following features in the medical illness. The patient had a history of coronary artery disease and received a coronary bypass graft in 1976. In 1988, he had a stroke and an electrocardiogram in May 1990 revealed an old inferior wall myocardial infarction and lateral ischemia. All these three findings point to diffuse widespread atherosclerotic vascular disease in this individual. Sudden death, as occurred to the patient, is most commonly related to coronary artery disease, which the patient had. I am unaware and do not believe evidence exists for any of the medications the patient received or stress it to be an influential factor in development of coronary artery disease. In December 2009, Dr. Zumstein wrote that risk factors for coronary artery disease include diet, stress in personality, and physical inactivity. Dr. Zumstein noted that the Veteran had two major surgical procedures for service-connected peptic ulcer disease, and that this problem caused him stress and discomfort. In the early years, the peptic ulcer affected his diet. Dr. Zumstein noted that milk was a major component of the dietary treatment, and this more than likely raised his cholesterol levels. Dr. Zumstein also noted that the Veteran had a great deal of stress after the first operation and leading up to the second major operation, the Veteran presented with severe GI bleed, which was extremely stressful to the Veteran. Dr. Zumstein stated that the severe traumatic arthritis of the left shoulder progressed to a frozen left shoulder, which was service-connected and led to chronic pain, disability, and physical inactivity. Dr. Zumstein noted that the pain was near-constant and led to insomnia. Dr. Zumstein stated that the Veteran was treated with Celebrex, which carries a vascular risk. Dr. Zumstein opined that the service-connected disabilities contributed to the Veteran's terminal sudden demise. The Board requested a medical opinion from a VA physician and received a response in May 2013. This physician concluded that the Veteran's pain medication did not cause the Veteran's cardiopulmonary arrest, although he did not include Celebrex among the medications considered for that question. He did state, however, that it did not cause the Veteran's coronary artery disease. He also concluded that neither stress, or diet, or physical inactivity contributed to the cause of the Veteran's death. In September 2013, the appellant provided an opinion from a private physician, Neil E. Doherty, MD. Dr. Doherty noted that the use of Celebrex is cautioned in patients with a history of cardiac failure and hypertension and should only be used for the shortest duration possible. Dr. Doherty opined that it is at least as likely as not that the pain medications prescribed for the Veteran's frozen shoulder, notably Celebrex in combination with Lortab and Percocet, contributed substantially or materially to cause the Veteran's cardiorespiratory arrest. These medications combined with the Veteran's pre-existing coronary artery disease and peripheral arterial disease to cause his death or aided or lent assistance to the production of his death. Dr. Doherty noted that Celebrex has a well-documented history of contributing to myocardial infarction and sudden cardiac death, especially in high-risk patients such as the Veteran in this case. Dr. Doherty opined that it is more likely than not that the use of Celebrex for eight to ten months in the year immediately prior to the Veteran's death for the relief of his severe left shoulder pain aggravated the underlying coronary artery disease and substantially increased the probability of the final heart attack in December 1999. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2013). There must be competent medical evidence that establishes a relationship between the current claimed conditions, in this case the Veteran's death, and the service connected disability. 38 C.F.R. § 3.310(a) (2013); Libertine v. Brown, 9 Vet. App. 521 (1996). Significantly, only Dr. Doherty addressed whether the use of Celebrex in the year immediately prior to the Veteran's death for the relief of his severe left shoulder pain aggravated the underlying coronary artery disease. He concluded that it did, citing to medical literature, and the Veteran's medication history to support his opinion. As there is no contrary opinion, it is sufficient to award the benefit. Accordingly, service connection for the cause of the Veteran's death is granted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs